Gregor Aisch, Amanda Cox, Kevin Quealy, You Draw It: How Family Income Predicts Children’s College Chances, New York Times, May 28, 2015. [How likely is it that children who grow up in very poor families go to college? How about children who grow up in very rich families?]
New Article: Steven A. Ramirez, Social Justice and Capitalism: An Assessment of the Teachings of Pope Francis from a Law and Macroeconomics Perspective, 40 SEATTLE U. L. REV. 1229 (2017). Abstract below:
The first part of this Article will synthesize the key teachings of Pope Francis from his most important statements on economic structures and social justice and situate these teachings within contemporary economic realities and traditional social justice teachings. Part II of this Article will demonstrate that the Pope’s teachings on social justice fundamentally reflect the best learning from economists on how to sustain economic growth. Part III of this Article will show that nations that undertake policies to pursue the fundamental tenets of the Pope’s teachings (such as minimizing childhood poverty) also perform the best in achieving high human development outcomes for the mass of their citizens. This Article will therefore conclude that the recent teachings of Pope Francis (and the Catholic Church) on the topics of social justice and the environment are fully consistent with the most robust systems of capitalism in the world today as well as with traditional economic thinking, going as far back as Adam Smith. Therefore, legal policymakers (including all branches and agencies of the government) should work to impound the core elements of these teachings to the maximum extent possible to create the most robust and sustainable capitalism possible.
Fleischer, Miranda Perry and Hemel, Daniel Jacob, Atlas Nods: The Libertarian Case for a Basic Income (October 21, 2017). Wisconsin Law Review, Forthcoming; San Diego Legal Studies Paper No. 17-306. [Abstract below]
Proposals for a universal basic income are generating interest across the globe, with pilot experiments underway or in the works in California, Canada, Finland, Italy, Kenya, and Uganda. Surprisingly, many of the most outspoken supporters of a universal basic income have been self-described libertarians — even though libertarians are generally considered to be antagonistic toward redistribution and a universal basic income is, at its core, a program of income redistribution. What explains such strong libertarian support for a policy that seems so contrary to libertarian ideals?
This Article seeks to answer that question. We first show that a basic safety net is not only consistent with, but likely required by, several strands of libertarian thought. We then explain why libertarians committed to limited redistribution and limited government might support a system of unconditional cash transfers paid periodically. Delivering benefits in cash, rather than in-kind, furthers autonomy by recognizing that all citizens — even poor ones — are the best judges of their needs. Decoupling such transfers from a work requirement acknowledges that the state lacks the ability to distinguish between work-capable and work-incapable individuals. Providing payments periodically, rather than through a once-in-a-lifetime lump sum grant, ensures that all individuals can receive a minimum level of support over lifespans of variable lengths, while also allowing individuals to adjust payment flows through financial market transactions.
Although our main objective is to assess the fit between libertarian theory and a universal basic income, we also address various design choices inherent in any basic income scheme: who should receive it?; how large should it be?; which programs might it replace?; and should it phase out as market income rises? Lastly, we consider the relationship between a basic income and the political economy of redistribution. We find that the case for a basic income as a libertarian “second-best” is surprisingly shaky: libertarians who oppose all redistribution but grudgingly accept a basic income as the least-worst form of redistribution should reconsider both aspects of their position. We conclude by drawing out lessons from our analysis for non-libertarians, regardless of whether they are supportive or skeptical of basic income arguments.
Mario Koran, San Diego Unified Sends Parents Who Can’y Pay for School Bus Rides to a Collections Agency, Voice of San Diego, November 8, 2017. [“California is one of a dozen states that allows school districts to charge parents fees for bus rides to school.”]
Tremblay, Paul R., Surrogate Lawyering: Legal Guidance, Sans LawyersSurrogate Lawyering: Legal Guidance, Sans Lawyers, Georgetown Journal of Legal Ethics (2017). [Abstract below]
Innovative thinkers within the access-to-justice (ATJ) movement have been experimenting with creative ideas for delivering meaningful legal guidance in an efficient way to clients struggling with civil legal needs. These efforts respond to the long-standing crisis in the delivery of legal services to disadvantaged persons, and the overwhelming need for legal advice in areas such as debt collection, housing, family, and immigration. One such imaginative proposal is what this Article calls “surrogate lawyering.” This innovation envisions public interest law firms using some scarce lawyer time to train and advise community-based organization (CBO) staff members to respond, in real time and in context, to the legal problems their constituents encounter. Crafted well, and complemented by technological aids being developed by ATJ entrepreneurs, surrogate lawyering could effect a substantial improvement in the lives of the clients in need.
This Article assesses the ethical implications of the surrogate lawyering venture. It concludes that the lawyers who advise the CBO staffers would not inadvertently trigger an attorney-client relationship with the constituents/clients who benefit from the staffer’s guidance. Nor would those lawyers have agency-driven commitments to the constituent/clients. The public interest law firm likely would, though, have attorney-client duties to the CBO, and would need to account for that reality in its operations. The Article does conclude, though, that the surrogacy model generates a significant concern involving the unauthorized practice of law (UPL), and the lawyers’ assistance with that activity.
The Article proceeds to critique the UPL concerns, demonstrating that neither the constituent/clients nor the legal profession would be likely to suffer any appreciable harm by permitting surrogate lawyering ventures to operate. The Article closes with suggestions for some adjustments to the usual UPL constraints that would permit surrogate lawyering strategies while minimizing any risks associated with that means of delivering legal advice.
Sonia Nazario, Trumps Cruel Choice: Who Gets to Stay?, New York Times, October 27, 2017. [“The United States is i the throes of a great debate: Do we want – can we afford – to remain a safe haven for people who … are here running for their lives?”]
Peter Whoriskey, For many older Americans, the race race is over. But inequality isn’t., Washington Post, October 18, 2017. [“While the rat race ends with retirement, one of its principal features extends well past a person’s last day of work.”]
Sekhon, Nirej, Dangerous Warrants, Washington Law Review, Vol. 93, (2018) [Abstract below]
The Supreme Court has cast judicial warrants as the Fourth Amendment gold standard for regulating police discretion. It has embraced a “warrant preference” on the premise that requiring police to obtain advance judicial approval for searches and seizures encourages accurate identification of evidence and suspects while minimizing interference with constitutional rights. The Court and commentators have overlooked the fact that most outstanding warrants do none of these things. Most outstanding warrants are what this article terms “non-compliance warrants”: summarily issued arrest warrants for failures to comply with a court or police order. State and local courts are profligate in issuing such warrants for minor offenses. For example, the Department of Justice found that the municipal court in Ferguson, Missouri issued one warrant for every two of its residents. When issued as wantonly as this, warrants are dangerous because they generate police discretion rather than restrain it. Nonetheless, the Supreme Court has, most recently in Utah v. Strieff, treated non-compliance warrants as if no different from the traditional warrants that gave rise to the Fourth Amendment warrant preference.
This article argues that non-compliance warrants pose unique dangers, constitutional and otherwise. Non-compliance warrants create powerful incentives for the police to conduct unconstitutional stops, particularly in poor and minority neighborhoods. Their enforcement also generates race and class feedback loops. Outstanding warrants beget arrests and arrests beget more warrants. Over time, this dynamic amplifies race and class disparities in criminal justice. The article concludes by prescribing a Fourth Amendment remedy to deter unconstitutional warrant checks. More importantly, the article identifies steps state and local courts might take to stem the continued proliferation of non-compliance warrants.
New Jotwell Review: Ezra Rosser, “Discovering (Tax) Rights that the Poor Have Post-Welfare Reform” Jotwell (Nov. 16, 2017) (reviewing Susannah Camic Tahk, The New Welfare Rights, BROOKLYN L. REV. (2017))